Nice things having been said about Ted Olson’s brief for Citizens United, the time has come to praise the government’s brief.  It is effective where it can be; and where its persuasive prospects are slim, it does the best it can.

     On whether the ad is express advocacy or its functional equivalent:  Olson disputes this finding, and the Federal Election Commission (in league with the Solicitor General) wins this volley with ease.  Of all the defenses which might be made on the law for Hillary The Movie , the one utterly dead on arrival is that it is somehow susceptible of a reasonable interpretation other than to vote for or against the candidate. 

     Another assertion the FEC successfully parries is that it somehow should matter whether the viewers of the firm were conservative and already committed to voting against Hillary Clinton.  Whether the viewer is persuadable is not, the FEC rightly says, the constitutional standard, nor could it be.  The question is only the nature of the advocacy—express advocacy or its functional equivalent.

     And whether the film is 90 minutes long or feature length cannot spell the difference between constitutional protection or its absence.  If speech is express advocacy or its equivalent, then that is what it is, long-winded or not.  The FEC wins on this point, too.

     Where the government struggles, as might be expected, is in disputing the relevance of the manner of delivery—video-on-demand.  The viewer chooses the film and views it in the privacy of her home.  It is conceded that the same individual viewing the film on a DVD would be fully protected, but the FEC would distinguish video-on-demand:  Congress can make these distinctions, the agency argues.

     Something about the distinction seems not quite right here, and Olson made the most of it:  the FEC is left to mitigate the problem by confusing the issue.  This is the confusion:  the FEC switches the question of individual choice for the very different consideration of viewer political preference.  True, it should make no difference if viewers ordering the film for personal home-viewing are generally sympathetic to the film-makers’ politics.  It does make a difference—a great deal—that the viewing is personal, in their own home and by their own choice:  not, in other words, the type of “broadcast, cable, or satellite communication” that the provision is aimed at. 

     The FEC blurs together the very separate issues of political preference and personal viewing.  It may have had no alternative, since it is a tall task to say that the same viewer who can order the DVD or watch the movie in a theater cannot order it up on video-on-demand. 

     Here the government sees corporate spending for express advocacy and protests any defense that makes a fine point of how the corporate-paid message is transmitted.  But it must contend with a strong sense that reform measures have traveled far from their legitimate origins if they are applied to prevent home-viewing of films produced by a nonprofit corporation in business to sell its political ideas. 

 
Bob Bauer